Appeal of EVELIN GIRON and DIXON GOMEZ Sr., on behalf of their children, from action of the Board of Education of the Carmel Central School District regarding residency.

Decision No. 18,441

(July 15, 2024)

Gugliotta & Ponzini, PC, attorneys for petitioner, Erina R. Ponzini, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, attorneys for respondent, Cassidy Allison, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Carmel Central School District (“respondent”) that their children (the “students”) are not district residents.  The appeal must be dismissed.

Prior to the events giving rise to this appeal, the students were registered in respondent’s district based on their residence therein (the “in-district address”).  After the younger student reported moving outside the district, respondent commenced a residency investigation.  Investigators surveilled the in-district address as well as an address outside of the district (the “out-of-district address”) on four days.  On three of the days, an investigator observed one of the petitioners or the older student departing from the out-of-district address in the morning.[1]  On the fourth day, an investigator observed Mr. Gomez pick up the younger student after school at the in-district address and drive to the out-of-district address. 

By letter dated February 6, 2024, respondent informed petitioners that it had reason to believe that the students were not district residents.  Respondent offered petitioners an opportunity to meet and submit documentation in support of their claim of residency.  After petitioners did not respond, respondent informed them of its determination that the students were not district residents.  This appeal ensued.  Petitioners’ request for interim relief was granted on April 8, 2024.

Petitioners argue that the students reside at the in-district address with Ms. Giron.  In support thereof, they submit a driver license, pay stub, and bank statement bearing her name and the in-district address.  They further assert that Mr. Gomez resides at the out-of-district address and that the students visit him “one to two days a week.”  They seek a determination that the students are district residents.

Respondent argues that its residency determination was based on the evidence before it, including its surveillance evidence.

Education Law § 3202 (1) provides, in pertinent part, that “[a] person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.”  The purpose of this provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioners have failed to meet their burden to prove that respondent’s determination was arbitrary or capricious.  In addition to the surveillance summarized above, respondent conducted two additional days of surveillance of the in- and out-of-district addresses following the commencement of this appeal.[2]  On two days in April 2024, no activity was observed at the in-district address.  By contrast, an investigator observed Mr. Gomez at the out-of-district address on both days; the older student was also observed on one of these days.   Respondent also submits property records showing that petitioners purchased the out-of-district address “as husband and wife” in December 2024.  Petitioners’ assertions and documentary proof are insufficient to overcome respondent’s surveillance evidence, which frequently depicted the older student—and, on at least one occasion, Ms. Giron—at the out-of-district address (Appeal of E.M., 63 Ed Dept Rep, Decision No. 18,390; Appeal of J.M., 62 id., Decision No. 18,192).  Thus, petitioners’ explanation that the students spend “one to two days a week” at the out-of-district address with Mr. Gomez is “possible, but not probable” (Appeal of J.B., 63 Ed Dept Rep, Decision No. 18,323; Appeal of Lajuett, 60 id., Decision No. 17,919).  Accordingly, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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